[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 October 2018

Fri Nov 16 03:20:36 UTC 2018

Thanks Jim for reminding me.

The text I sent to the two Auction Providers that I am aware of (Right of the Dot and Applicant Auctions) at the beginning of October is below.  One other point is that at the time we sent this note, we had only really heard from those opposing the private auctions from the discussions in Panama and the first conference call on the subject.

One of the providers has responded and wants to speak with us, but the other has not responded at all.  We have an action item to set up some time with the one that has responded and the full working group to give their feedback.

Please let me know if you have any questions.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Dear _______________________,

As you know, I co-chair ICANN’s Generic Names Supporting Organization’s Policy Development Process Working Group on Subsequent Procedures for the introduction of future top-level domains.  (“SubPro” for short).

The GNSO's New gTLD Subsequent Procedures Working Group (WG), which was chartered by the GNSO Council to conduct a Policy Development Process (PDP), is seeking to determine what, if any, changes may need to be made to the existing Introduction of New Generic Top-Level Domains<https://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm> policy recommendations from 8 August 2007 as well as the final Applicant Guidebook<https://newgtlds.icann.org/en/applicants/agb> dated June 2012. As the original policy recommendations as adopted by the GNSO Council and ICANN Board have "been designed to produce systemized and ongoing mechanisms for applicants to propose new top-level domains", those policy recommendations remain in place for subsequent rounds of the New gTLD Program unless the GNSO Council would decide to modify those policy recommendations via a policy development process. The PDP WG created 5 Work Tracks that are responsible for considering the subjects within its charter. The PDP Working Group sought community input through two community comment periods. The Working Group has produced its Initial Report, which includes material from the full Working Group and Work Tracks 1-4. Work Track 5, focused on Geographic Names at the Top-Level, was established later than the other Work Tracks and will produce a separate Initial Report.

The Initial Report<https://www.icann.org/public-comments/gtld-subsequent-procedures-initial-2018-07-03-en> was posted for public comment in late July and the comment period closed at the end of September.  While putting together the Initial Report, we recognized that one of the topics that we did not cover was the role of private auctions in the resolution of contention sets.   Over the past several weeks, the Working Group has been discussing whether private resolution of contention sets, and private auctions specifically, should be allowed in subsequent new gTLD rounds.  Many members of the community have expressed concerns that because there were a number of applicants that substantially financially benefitted from losing contention sets, that the subsequent rounds would lead to a number of applicants applying for TLDs with the sole purpose of losing to either keep those proceeds or use those proceeds to fund other applications.  Those members of the Working Group are also afraid that this may provide a significant advantage to those with the resources to take advantage of the rules as opposed to finding those applicants that truly desire to use the TLDs to further the public interest.

As one of the key TLD Private Auction Providers in the 2012 new gTLD round we were wondering if you would be willing to (a) speak with the Working Group about your experiences, (2) respond to the public comment period on a Supplemental Initial Report (a draft of which is included in this e-mail), and (3) help us collect data on the 2012 new gTLD round.   Please note that the attached Supplemental Initial Report is still under discussion with the Working Group and will nor be released for public comment until approximately October 12th.   It is not confidential as all documents are posted on our community wiki<https://community.icann.org/display/NGSPP/New+gTLD+Subsequent+Procedures+PDP+Home>, but it has not been generally released to the public.

We understand that there were strict rules of confidentiality were imposed on all the parties to the private auctions from the 2012 new gTLD round, but any data that you could provide us would be extremely helpful.  Even if the data is anonymized, understanding the true impact of private auctions on the resolving contention sets is critical.  In addition, we would be interested in understanding what your thoughts are on whether private auctions should be allowed moving forward, what the benefits are of private auctions, and what, if any, improvements could be made if they were allowed.

Please let us know if you are available in the next week or so to discuss this project with us and what your availability might be to speak with the Working Group.

Thank you in advance for your assistance.

Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

D: +1.703.635.7514
T: +44 (0) 20 7421 8250
E: jeff.neuman at comlaude.com
www.comlaude.com<http://www.comlaude.com>

Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jim Prendergast
Sent: Thursday, November 15, 2018 6:08 PM
To: Jim Prendergast <jim at GALWAYSG.COM>; Julie Hedlund <julie.hedlund at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 October 2018

Resending as I don’t believe anything has been circulated on the list regarding this.  Or did I miss an email?

Thanks

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jim Prendergast
Sent: Tuesday, October 09, 2018 2:29 PM
To: Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 October 2018

To follow up on the call yesterday

Appreciated the update from Jeff on the outreach to the auction providers.  At one point we talked about seeing the questions being posed to the providers. Can we add circulating what was sent to them and a call for members of the Working Group to supplement with follow up questions to the action items?

I think asking the right questions is critical to getting the answers and feedback the group needs to do a thorough review of the auctions process

Thanks

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Julie Hedlund
Sent: Monday, October 08, 2018 12:50 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 October 2018

Dear Working Group members,

Please see below the notes from the meeting today, 08 October 2018. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2018-10-08+New+gTLD+Subsequent+Procedures+PDP.

Please also see the attached referenced documents.

Kind regards,
Julie
Julie Hedlund, Policy Director

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Notes and Action Items

Actions:

Supplemental Report:
ACTION ITEM: WG members are requested to review the suggested text, particularly in Section 1.2, and send in any edits/comments by COB 08 October.
ACTION ITEM: Make sure that the preamble is clear that we are soliciting feedback on not just the questions but also on the recommendations.
ACTION ITEM: Section 1.5 -- incorporate changes from Jim Prendergast.
ACTION ITEM: Release a preliminary draft Supplemental Report on 12 October for discussion in Barcelona; publish the final Supplemental Report the week of 29 October and close the public comment on 10 December.

Notes:

1. Agenda review/SOIs: No updates.

2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued:

Section 1.1:  Auctions: Mechanism of Last Resort

Changes:
-- Added text on different types of auctions in Section d.  Talks about the Vickey auction, and alternatives to an auction.  Also added new text/clarifications in Section f.

Discussion:
-- Section on registrar support -- where Jim Prendergast's comments incorporated?  Jim resent the email and mention the comments to that section in the discussion

Section 1.2: Private Resolution of Contention Sets (Including Private Auctions)

Changes:
-- Differentiate between private resolution and private auctions.
-- Section d -- moved from Section c and added as options:  First bullet point: Delineation of the concerns about private auction and enforcement could be circumvented with other methods of private resolution.  Second bullet point taken from comments on the last call and from the list; third bullet point from a single WG member.
-- Additions to Section f Deliberations to make it clear that we aren't just talking about private auctions.

Discussion:
-- Community applications have strict restrictions for application changes, which puts them at a disadvantage.  If we go away from a private auctions we need to give them the same level playing field during the private resolution process.  See where we can put this in -- Section 1.4?
-- Problem is that basically any private resolution could de facto become a private auction.  Needs to be transparency so that those who are interested know what is going on.
-- Tried to integrate the private resolution option in Sections d and f -- if something is missing WG members should let us know where it should be added.
-- Enforcement issue: private auction is just one way to do a private resolution.  Complaints about private auctions are really complaints about private auctions.  This needs to be clearer.
-- Make sure that the draft reflects that certain types of private resolution don't involve a monetary element -- make sure we have everything in here without stating that it is one option or the other.  Don't eliminate the options the WG is discussing.
-- What would be fair ground rules for private resolution?
-- A number of the comments on the Initial Report are on the notion of the parties' ability to resolve contention between themselves.  Be careful that we aren't now implying that coming to a private resolution is somehow inappropriate -- we are talking about one company profiting over another.
-- Concerned about negative speculators -- gTLD trolls.  Those who are entering into a contention set with the intent to lose and get paid off.
-- The other issue is that the winner is by definition is the highest bidder.
-- Page 10: Looking for a public comment period in addition to an ICANN approval.  Put in a question/reference.

Section 1.3: Role of Application Comment

Changes:
-- Section c -- added comments on the last paragraph.  Could ask a question that just says, what do you think of the recommendation?  Public comment is to provide response to preliminary recommendations, so  question does not have to be called out.  Don't need a specific invitation to provide a comment..  Make sure that the preamble is clear that we are soliciting feedback on not just the questions but also on the recommendations.
-- Section f Deliberations: Comments added and text amended.

Section 1.4: Change Requests

Changes:
-- Second bullet in Section d -- added comment and amended the text.

Section 1.5: Registrar Support for New gTLDs

Changes -- From Jim Prendergast:
-- Page 21: It wasn't a single group.
-- Page 23: Added a bullet/additional question.

Update on feedback on private auction providers:

From the Leadership:
-- Only her back from one provider and they said they couldn't provide data due to confidentiality.
-- Question: should we delay the publication of the Supplemental Report until after ICANN63?  Also, should we incorporate feedback from the Initial Report.
-- Co-Chairs noted that if we extended the Initial Report public comment period it would be more difficult if not impossible to incorporate feedback into the Supplemental Report.  If we delay it could throw off the schedule by several months.  Leadership team also discussed that the purpose of the Public Comment period is to get feedback.  Also can have the private auction providers to meet with the WG to discuss their feedback.  Because we don't know if we will get more data not sure we can justify delaying.

Discussion:
-- The feedback we did get from the previous report: we got comments specifically on private auctions and think we should address them.  Also take advantage of time with the Board in Barcelona.  Important for the process even if it takes another few weeks.  Also, taking advantage of face-to-face meetings in Barcelona.
-- The issues on auctions are not as high on the ALAC's list as others; feeling is that this is a long process that we are in and we have a long way to go.  If we delay by a few weeks it may delay the process by a few months, but we'll end up with a better process.
-- Council Liaison: Appreciate that people want the best product possible. On auctions we had discussions in Panama and since then.  If we can meet the deadline on 12 October that is a good thing to do.  Be very respectful that these PDPs cannot go on forever.  Need to try to keep to the timeline.
-- Do think that we need to be mindful that when this goes to the Council for review that the proper processes were followed.
-- The biggest issue here is that there are no actual preliminary recommendations and the WG needs to arrive at some.  Otherwise public comment will be very scattered.
-- What about carving out auctions from this report and do another supplemental just on auctions.
-- Release a preliminary draft for discussion at ICANN63 and then release the final on 29th of October with the understanding that any extension would be a most for a week so that comments are back in December and not into January.  Without an extension it would close on 10 December.

ACTION ITEM: WG members are requested to review the suggested text, particularly in Section 1.2, and send in any edits/comments by COB 08 October.
ACTION ITEM: Make sure that the preamble is clear that we are soliciting feedback on not just the questions but also on the recommendations.
ACTION ITEM: Section 1.5 -- incorporate changes from Jim Prendergast.
ACTION ITEM: Release a preliminary draft Supplemental Report on 12 October for discussion in Barcelona; publish the final Supplemental Report on 29 October and close the public comment on 10 December.

3. Planning for ICANN63:

-- Sessions on Saturday 20 October for WT1-4 and WT5 will be in the morning and afternoon will be WT1-4.  Third session is breakout rooms for discussion of Initial Report comments.

4. AOB

From the chat:
Jim Prendergast: just resent langauge for Registar Support.  had wrong address
Cheryl Langdon-Orr (CLO PDP Co-Chair): Thx Jim just saw it flash past on my screen so rec'd but not read
Cheryl Langdon-Orr (CLO PDP Co-Chair): Noted Jamie...
edmon 2: do.we anticipate change of applied for string as a way for conflict resolution?
Kristina Rosette (Amazon Registry): Apologies for joining late. Listened to the first few minutes of the data protection/privacy webinar and decided to move here.
Liz Williams: @Jamie B...and when you come up with language make sure you include an end-point for any negotiations with a "drop dead" external timeline.  See other comments I've made elsewhere about flattening the application evaluation process to ensure that different types of applicants are not disadvantaged.
Anne Aikman-Scalese: Agree with Jamie re lack of consideration of special aspects of Community applications  - where, for example, several applications for same string qualify for CPE, what happens?
Jon Nevett: I'd love to hear an argument of why private auctions are not ok, but paying other applicants to withdraw are ok.  To me, the have to be treated the same, as aprivate auctions are just one mechanism for a buyer to pay other applicants to withdraw
Jon Nevett: the draft seems still stuck on focusing on private auctions
Vanda Scartezini: Jon, guess the general objection is financial. for the auction they pay a fee to ICANN.
Liz Williams: @ Jon .... the question is not why private auctions aren't OK...the question is the reverse.  What array of options do applicants have to resolve contention?  All options should be on the table.
Kristina Rosette (Amazon Registry): As I noted in my written comments, I agree with Jon's views w/r/t private auctions & private resolution and would also like to hear the answer to the question he's posed here.
Michael Casadevall: @Jon: I feel like we need a mechanism where any devitation from the process (aka any private resolution) if we still allow it need approval from ICANN and/or community
Jim Prendergast: To Jeffs point - lots of talk of it in Panama breakouts
Anne Aikman-Scalese: I agree with Jim and others that the document should not go out until the options presented by the WG have been stated in the Supplemental Report.  The views of the WG are the views on which we are seeking public comment.  It's not that the WG members should be submitting public comment.
Carlton Samuels: @Edmon: Interesting question. I know of a case in the last round where that action was taken as a means to resolve a conflict but it was never accepted
Liz Williams: @jeff...thanks for that and I appreciate the point you've made.  This is not about public interest.  It is about applicant interest...and we need to do more work about understanding the motivations to resolve contention.
Carlton Samuels: Question on private resolution: Would an action to resolve that did not include a priori transfer of money be acceptable?
Anne Aikman-Scalese: COMMENT:   I would favor an open public discussion of private string resolution at the ICANN meeting - dedicated 30 minute session for that alone.
Liz Williams: Maybe the way to resolve discussion around private auctions and/or last resort ICANN auctions is to really think about auction proceeds...
Michael Casadevall: Anne: +1
Anne Aikman-Scalese: Sarah's option is not there, is it?
Jon Nevett: it's not an enforcement issue Jeff
Michael Casadevall: just a heads up, I'm really feeling kinda ill. I may drop off the call but I'll see if I can solder on.
Jeff Neuman: Sarah's option is in 1.1 on Auctions in general
Greg Shatan: Favoring a last resort auction where ICANN gets the money would be seen as more troublesome by many.
Jeff Neuman: As it is not just related to Private auctions, but the use of all auctions in general
Cheryl Langdon-Orr (CLO PDP Co-Chair): Indeed Steve
Jon Nevett: "○   Implementation Guidance under discussion: The Applicant Guidebook and program Terms & Conditions should be amended to state that resolution of string contention via private auction is disallowed."
Jon Nevett: draft still needs work
Anne Aikman-Scalese: Sarah said her proposed language is coming in today or tomorrow I think.
sarah l: the icann board, in its comments to the initial report, public auctions might not be reconcilable with ICANNs commitments and core values, we might need to ask ICANN if private resolutions may cause the same concerns
Jeff Neuman: @Jon - That is an option that is under discussion
Cheryl Langdon-Orr (CLO PDP Co-Chair): Yes it makes sense to also add as an option (thanks Sarah in advance of your specific text :-)
Maxim Alzoba (FAITID): how to distinguish a private resolution from the situation where one of the parties desided to quit under load of new info?
Maxim Alzoba (FAITID): *decided
Carlton Samuels: So the entire discussion on 'private resolution' is predicated on knowledge of the transaction before the fact? Are we sure the community would have sight of this to make any enforcement worthwhile?
Steve Chan: @Jon, see starting at the 3rd bullet under section (e)
Steve Chan: We attempted to note that private auction was only one method of private resolution.
Cheryl Langdon-Orr (CLO PDP Co-Chair): Yes that was requested last meeting
Cheryl Langdon-Orr (CLO PDP Co-Chair):  Jon that would be appreciated (sooner the better ;-)
Donna Austin, Neustar & Council Liaison: The concern is not the mechanism, the concern is applicants profiting from private auctions and applying specifically for that purpose.
Jon Nevett: no one suggesting that we eliminate options
Jeff Neuman: Thanks JOn
edmon 2: towards competition, choice and consumer trust? should still be what guide us?...
Carlton Samuels: @Donna: I understand that.  My question is if private resolutions are to be embraced, what is the baseline for clarity and fairness without a priori knowledge? And assuming a priori knowledge, can they be classed as "private" thereafter?
Jon Nevett: Donna +1 and addressing the concern that profiting would result in speculative applications
Jeff Neuman: Susan, you are coming in and oyut
Kristine Dorrain: +1 Jon
Kristine Dorrain: I think we also need to remember that sometimes the cure is worse than the poison.  In looking for a way to stop a few speculators, are we just tying our hands for legitmate purposes?
Cheryl Langdon-Orr (CLO PDP Co-Chair): All good at this time Jeff
Kristina Rosette (Amazon Registry): alleged speculators
Liz Williams: I have trouble with the "speculator" thing...how is it speculation if one goes into a process not knowing who would bid for what?  It might be "specualation" if one only waited to resolve contention without, in good faith, trying other methods.  One always wishes for a contention set of 0.
Cheryl Langdon-Orr (CLO PDP Co-Chair): So people what is your suggestion(s) for better text in this report to reflect these matters and seek effective public comments We can make these changes with agreed proposed text (or guidleines to text)
Jeff Neuman: Thanks Cheryl....that is the key question
Anne Aikman-Scalese: COMMENT: First Paragraph on Page 10, an application that is changed should be subject to not only ICANN approval, but also to a public comment period.
sarah l: folks just checking the draft says a contended applicant can’t jump out of one contention set into another it the applicant is allowed to change the string.  we talked about it at the  last meeting
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